Examination of Witnesses (Questions 580
- 599)
TUESDAY 30 MARCH 2004
MS ROWENA
DAW, MR
LEE SMITH,
MR GERALD
JONES, DR
JED BOARDMAN
AND MR
PAUL FARMER
Q580 Chairman: Are you arguing that
the particular problems which are faced by people with mental
health problems are different from the problems faced by other
disabled people because we have had much the same evidence from
other groups of disabled people of the problems with employers?
Ms Daw: Certainly we accept that
other groups of disabled people face discrimination, absolutely,
we know that. I think the difficulty we findand we are
making this argument because of the evidence from our cases, overwhelming
piles of cases and examples that come to us at our legal unitis
that people who face discrimination fall at the first hurdle if
they have mental health problems. They never get through the door.
Remembering that the definition of discrimination is the gateway,
it is not necessarily going to mean that people will succeed but
it is the gateway.
Q581 Lord Rix: Rowena, going back
to your original statement, it is your understanding that the
law makers, the draftsmen who drafted the original definition
in the DDA, thought that mental illness would be covered and,
if you do not believe that to be so, should we not be looking
on it as a new inclusion in our deliberations?
Ms Daw: In some senses, I think
it was felt that it would be adequately covered; in other senses,
I think it was not understood the extent to which the way it was
drafted would cause problems. I think we are looking at three
or four different aspects of the definition. "Clinically
well recognised" was brought into the definition because
they thought that it was necessary to screen out mild eccentricities
etc. That has proved not to be so but, in other respects, I think
the normal day-to-day activities which is much more restrictive
than in the American legislation, on which of course this legislation
was modelled, has had the unintentional effect of making it very
difficult for people with mental health problems because they
have to twist their evidence to such an extent as the only thing
that is relevant is inability to concentrate. So, I guess it is
an answer with different aspects.
Q582 Mr Berry: In Mind's submission,
you say that the requirement that mental illness be clinically
well recognised, to use the phrase in the DDA, is patently discriminatory
and I understand the basis of that argument. You then go on to
say that that definition causes particular problems because there
are disagreements between medical practitioners and I wonder if
you could say a little about why this happens and what problems
that causes.
Ms Daw: Our main problem is that
it is an extra legal hurdle and there are many cases where there
is not a particular issue, but we know that medical practitioners
disagree quite fundamentally at times, particularly early on,
particularly at first onset of an illness where it is not absolutely
clear what progress or what form the illness will take and, in
the case of mental ill health, it is often the case that the person
has only had access to a GP. GPs are not trained in great depth
on issues of mental ill health and therefore they might give a
very general description of what the problem could be. If I could
illustrate it perhaps by a recent case that I think has caused
enormous problems for us, the case of Morgan Staffordshire
University. In that case, the tribunal were extremely sympathetic
to the particular person who had serious depression over a period
of 12 months. They accepted that it lasted for 12 months and they
accepted that it had a substantially adverse effect on normal
day-to-day activities. In other words, the essence of the definition
was satisfied. However, because the medical notes had not been
able to locate precisely where this fitted in the international
classification of diseases, they were not able to say that it
was clinically well recognised. So, they found themselves in this
bizarre situation which is unique to mental ill health of being
unable to find it satisfied because they could not find where
it was. Obviously, there can be disagreements between practitioners
in any area, physical illness as well, but I think our problem
in relation to mental health is that you have that right at the
beginning. In other physical impairments, you will have that,
as you do with mental health as well, in terms of whether it is
substantial or not, but, in physical cases, for instance, at the
moment, you do not have to prove that you have a diagnosis, that
there is a physical diagnosis at all.
Q583 Mr Berry: If the requirement
that a mental illness is clinically well recognised were to be
removed from legislation, do you see any problems arising from
that?
Mr Farmer: I do not think so,
no. I think one of the key issues here is that the diagnosis sometimes
acts as a false security for employers who feel as though they
may or may not be covered by the nature of the diagnosis. We are
not saying here that diagnosis on its own is irrelevant but that,
at the moment, it is acting as an unnecessary and an additional
hurdle, so we would see it as being something that would be taken
into consideration. At the moment, we cannot really see any real
problems that would be created if this clinically well-recognised
requirement were taken away.
Dr Boardman: Just to also reinforce,
we are not arguing that diagnosis is irrelevant in these cases,
rather that what is key is the sort of functioning of the person
and the impairment and disability associated with that. The second
thing I think we must remember is that we are often concerned
with lack of clear-cut cases or clear-cut diagnoses. They do arise
and are likely to arise within the physical medicine as opposed
to the psychiatric components of medicine.
Q584 Chairman: If they are less clear
cut and they are hard perhaps to recognise, how would somebody
know that they were discriminating against that person?
Mr Farmer: I am sorry, I may have
misled you there. When one has disputes between medical practitioners
about a diagnosis, it is quite often because the person could
fit into one or more diagnostic categories or straddle several
or that there is no widely accepted criteria to apply. That can
occur within a mental health diagnosis, but it can also occur
within a
Q585 Chairman: If a doctor finds
it difficult, would not equally an employer or a provider of goods
and services also find it difficult?
Mr Farmer: They do not make the
diagnoses. I think most lay people would observe the disability
or the difficulty in functioning and that is what any of us would
do. We do not label ourselves as having a diagnosis, but we talk
about what we cannot do, what the problem is, what the difficulty
in functioning is.
Q586 Lord Rix: Who is actually responsible
in the end for making the diagnosis for the DDA to come into effect?
Ms Daw: In the case of mental
health cases?
Q587 Lord Rix: Yes. In other words,
to be clinically well recognised.
Ms Daw: In most cases that succeed,
there will be not only a GP who has made a diagnosis but also
quite likely a specialist or psychiatrist generally as well. The
problem can be of course the first time somebody encounters this
illness. If they have had the illness over a period of years,
then the diagnosis is probably clearer and more settled. It is
when it happens for the first time that it takes some time perhaps
to diagnose and that is exacerbated by the difficulty often in
getting a psychiatrist to see the person, but it is a medical
diagnosis.
Q588 Baroness Wilkins: Perhaps I
should declare an interest in that I worked with Mind in the 1970s
under the late Tony Smyth and sadly he died at the weekend. We
are coming on to day-to-day activities. You make various recommendations
for expanding them. What normal day-to-day activities does the
DDA definition currently miss out and what type of impairments
does this affect?
Ms Daw: I guess that, in a way,
we have started from the other way round in that we have been
very aware of the fact that there is an understandable political
reason not to wish to expand the definition and, from the work
that I was involved with in relation to the taskforce, I am only
too aware of the importance of us locating where the problems
lie and only wishing to address those problems. So, we have started
really by looking at the volumes of case law and the numbers of
reports, all of which have pointed to this particular problem.
So, in a sense, the suggestions that we are making or the recommendations
that we are making to change the day-to-day activities come from
where we see those problems lying. So, we are not experts, if
you like, if that is what you are asking, on how that might affect
others but we are certainly aware that, perhaps with the exception
of people with arm and limb problems and perhaps in respect of
autism, we do not see that there is a major problem with normal
day-to-day activities in other areas. Do you want me to continue
to talk about why we have come up with the ones we have?
Q589 Baroness Wilkins: That would
be helpful.
Ms Daw: As we have said, the definition
concentrates on physical impairments and on the mental impairment
in relation to learning disabilities, which is a quite separate
and distinct situation from that of mental ill health. It is the
problem of an inability to concentrate that is the key thing,
the only way into the definition really for people with mental
ill health, and the cases show again and again how difficult it
is to come within that. I would just like to give one example
because I think it shows very clearly the extent of the issues.
This is the case of Hancock which concerned a very experienced
teacher, school governor and county councillor. He got severe
depression; he was off work for over 12 works; he could not see
people; he could not go out; he got terrific anxiety in relation
to involvement with any school children; and he had low motivation.
However, his notes said that he was cognitively intact. So, the
employment tribunal found him disabled despite that. The employment
appeal tribunal, looking at that he was cognitively intact, said
that he clearly was able to concentrate, there was not enough
evidence that he could not concentrate. The man was clearly severely
disabled over that period of time, but he could concentrate. That
was probably his strong point! The case then had to go back again
to an employment tribunal to see if they could work their way
around the medical notes, which were extensive, to bring this
man within the definition. Our view is that that is a terrific
waste of everybody's time, it is stressful, it is costly and it
is unnecessary because here was an example of a tribunal that
saw that this man's situation was clearly that of a disabled person
but he could not come within the definition because he could concentrate.
There are numbers and numbers of cases of that kind. Perhaps I
could just hand over now to Gerald who is going to talk more about
this issue.
Mr Jones: I am a user of mental
health services. I have been diagnosed as suffering from clinical
depression and I have some personality disorders associated with
my childhood. I live on my own which makes life extremely difficult
with a mental health problem. There are times when I become so
ill that I simply cannot care for myself. I cannot even get up
out of bed for several days at a time, which is quite a contrast
to how I can be the rest of the time. At those times, I cannot
interact with people, I find it difficult to keep threads of a
conversation, I cannot watch television programmes from start
to finish and I certainly could not write a competent letter.
I have to take particular care of myself all the time. For instance,
I have to keep certain food stocks in my freezer and also in my
cupboard in the form of dried and tinned foods. I always keep
dried milk in case I run out when my next door neighbour would
go and get milk for me. That is the sort of thing I have to do
because, when you live alone and you have an illness which affects
you to such an extent, the only other alternative is inpatient
treatment, in which case it would be the Brandon Mental Health
unit at Leicester General Hospital. I would just like to try and
reinforce to you folks that it is a labile illness. It does not
affect you to severe extents 24 hours a day but, at the worst
time, you simply cannot function at all and, at other times, you
are severely impacted. Now, if I had to satisfy a test of, can
you concentrate? I can concentrate today quite well. I got here
okay. Other times, I find it very difficult. As you know, I have
been to the House of Lords. I did the very first EAT submissions
myself to the Honourable Mr Justice Charles. One of the reasonable
adjustments, as I was suffering from panic attacks, was to go
on the train at a later time because I simply could not go in
the rush hour. That is the kind of effect that this illness has
on me.
Ms Daw: So, part of what we are
trying to encapsulate here is that, particularly in the case of
depression, it can be the ability to care for oneself that is
particularly important but, when we get to issues, for instance,
relating to schizophrenia or to eating disorders, again these
are severely disabling and potentially life-ending situations,
yet the ability to concentrate is not necessarily the main thing
that is affected. For instance, it is particularly a person's
perception of what we are calling reality which is actually a
crib from the Australian legislation which has that term in it
to cover precisely this situation where somebody has delusional
times and it is that which is the problem, not their ability to
concentrate. I think in our written evidence we give you examples
of cases with anorexia nervosa and schizophrenia, so we perhaps
can just refer you to that.
Q590 Lord Swinfen: The Committee,
as you have probably been aware, has received a wide range of
suggested additions to the list of normal day-to-day activities.
Is there any simple way you can see to decide on which ones to
add?
Ms Daw: I guess really there probably
is not a simple way to answer that, but I can only reiterate that
we are not approaching this de novo, if you like, we are
not approaching this as if we have a clean slate. What we are
concerned about is a very urgent problem that the cases show people
are not receiving redress for their discrimination and therefore
we have only focused on the issues that matter most to us and
we are sort of aware of the background in the Task Force in which
it was felt that it was only possible to go where there was a
real problem, as for instance with the others that are recommended
like cancer and HIV. So, I am afraid that I do not know that we
have a good answer for you on that.
Q591 Lord Swinfen: That is fair enough.
At present, if the activity is not on the list in Schedule 1,
it is not included.
Ms Daw: Yes.
Q592 Lord Swinfen: Do you think it
would be wise to change the legislation to show that those on
that list are purely examples?
Ms Daw: I think there is a lot
to be said for that as a potential way forward. My own view on
that however is that of course that is the American approach,
the American with Disabilities Act approach, and that is why people
with mental health problems fare a lot better under that legislation
and others as well and work is also included there. My own view
however is somewhat similar to that of those countries that have
not taken that approach, which is it is better to go for, if you
are going to look at things dramatically/differently, the Australian,
Irish and many other states' definition of discrimination. So,
I personally would not recommend that if we were to have a big
change, a big fresh look at it. What we want to do is to solve
an immediate problem.
Q593 Lord Swinfen: I do not know
that definition immediately; are you able to tell us what it is?
Ms Daw: It is quite long.
Q594 Lord Swinfen: Perhaps you could
send it to us.
Ms Daw: Yes.
Q595 Chairman: It would be helpful
if you could write to us with all those definitions.
Ms Daw: Absolutely, we can do
that.
Q596 Lord Rix: My first clash with
Tony Smythe was when I was Secretary General of Mencap and they
were sending out Christmas cards from Mind which were mentioning
people with a mental handicap which confused matters further.
However, we did sort it out after that. I have three questions.
Are you satisfied at the moment with the present definition of
mental impairment? Does it include learning disability or does
it not include learning disability? Of course, this question also
applies to the Mental Health Act, the putative Mental Health Act,
it applies to the putative Mental Incapacity Act and so on. Do
you think the definitions are clear enough in legislators' minds?
That is question number one. Number two is that your evidence
mentions the specific stigma which is associated with people who
suffer from depression but how does this stigma manifest itself?
Number three, how do you justify selecting only depression to
be separately treated in terms of the length of time a person
is affected by disability? Why have you chosen six months?
Ms Daw: If I could quickly answer
the first one about impairment. I think, Lord Rix, you know much
more about the whole issues around mental impairment than I do
but certainly as far as the DDA is concerned, I feel fairly confident
that learning disabilities are very well covered by both the legislation
and indeed the guidance in that respect. As far as your second
question is concerned
Mr Smith: I think we referred
to the stigma association with people who suffered from mental
health problems rather than specifically depression and the main
way that we want to respond to that is that people avoid seeking
helpmy area of expertise around employmentfor the
same reason people avoid employment because of the attitudes that
they almost inevitably encounter. They also avoid seeking help
and those two things do go together. Some statistics: only 24
per cent of people with mental health problems in England are
in employment. Of the other 76 per cent, obviously some will not
be able to work and some will not want to be in paid employment
but we know that many of those people do want to be in employment
and there is a substantial body of evidence to suggest that. An
example from the early 1990s is a survey carried out by Outset
among day service users and similar research in Nottingham revealed
that 47 per cent of users wanted help in gaining employment. I
think Gerald was going to give an example from recruitment agencies.
Mr Jones: I had specific and very
difficult problems getting back into employment following a breakdown
I had some years ago and being treated for mental health problems.
I will give you a couple of examples. I once applied for a job
in IT, which is the skill set that I have in computer networking,
with the Alliance and Leicester Building Society through a recruitment
agency. The recruitment agency did not even put me forward for
an interview but, having worked out that it was a bank based just
south of Leicester, I actually contacted their IT department directly
and spoke to one of their IT managers who jumped at the chance
and I was there the next day for an interview. I did not get the
job and I did not get it on merit and I am happy with that. Particular
recruitment agencies do not want to put you forward. The simple
fact of the matter isand I have used this example beforeit
is a little like going into Sainsbury, Safeways or Tesco. The
apples and the oranges in there look absolutely pristine these
days, there is never a blemish on the surface, and that is the
kind of product that they want to put forward to their client
companies and they seem to decide that if you have a mental health
problem or any history of it, they will not put you forward. I
will give you another example. I put my CV through with a Castle
Donington based agency. I was in the area, I was near the airport
and I popped in to see them. This guy actually said to my face,
"We don't employ psychos." Can you imagine what that
does? I was recovering from a very difficult time in my life,
"We don't employ psychos." I am not a psycho, I am just
a person who has some health problems, that is all, and I am not
ashamed of it either. I will give you a final example. I applied
for a position for which I was very, very well qualified with
the third largest drug company in the world that made over £3
billion profit. I applied through a computer recruitment agency
and I had to explain to them why I had not been in work for some
time. I had to tell them the truth, that I had been treated for
depression. They did not even give me an interview. I took them
to a tribunal. They spent tens-of-thousands-of-pounds defending
it. They had a team of three: an in-house solicitor, an in-house
barrister and an external barrister from Blackstone's Chambers.
I won! I won because I was right. I won because it was unjust.
The tribunal did not say, "You would have got the job",
they said, "There were two very well qualified people who
would have got that job and you were a third well qualified person."
The difference was that I, as a disabled person, having suffered
the stigma of mental health illness, did not even get put forward
for an interview with the company. The other two did. That is
unjust. It is very, very unjust. It is stigma. The physical difficulties
I carry amongst everybody in society is that I carry "stigma"
written across my face. I have been ill, that is all.
Q597 Lord Rix: We have not had an
answer to the question about six months yet.
Ms Daw: We chose depression as
opposed to choosing anything wider than depression because there
are many, many case examples and I will not go into them but there
are many where the person is clearly disabled but the case is
lost because the depression has not lasted for 12 months. One
recent example concerned a man where the tribunal actually were
trying to work out if they could tot up the 12 months because,
a classic situation, this man had had a depression, again had
been in perfectly satisfactory employment for many years, went
through a period of depression, was off work sick and was unable
to concentrate, etc, etc. He satisfied every aspect of the definition
except the fact that, within about five months, he started to
recover and that is normally the case with depression. More than
50 per cent of cases of depression do begin to pick up within
that period of time. So, by about six months, he was keen to get
back to work and, by about nine months, he was probably ready
to be back to workhe was still on medicationbut
he had been dismissed because he had depression. The reason why
we have chosen depression only is because that is where the problem
lies and because the taskforce looked at the short-term conditions
which attracted discrimination and that included cancer, HIV and,
in our view, depression, and indeed the taskforce found that as
well.
Mr Farmer: If I could perhaps
address the six months issue. Whatever time period you choose,
it is an arbitrary time period but it is not random, I think that
is the first point. The rationale we thought for this was firstly
about half of severe depressive episodes engendering suffering
and loss of function will go on for about six months and, after
that period, the ones that do go on beyond that tend to be chronic,
i.e. 12 months or beyond that period. Of course, these people
who have episodes lasting that time do have significant impairment
and they carry stigma and we wanted to emphasise really that that
is the group of people we are talking about with significant impairments.
The other thing it does do is that it reduces the likelihood,
if you were to go shorter than that and of course some episodes
still can be significant and be shorter, but it would overcome
the possibility that you could mistake those for shorter-lived,
stress-related reactions that may not carry that degree of impairment
and certainly may not carry that degree of chronicity at any one
point. I suppose the other matter is that of course people may
well have repeated episodes of these over periods of time. It
is sometimes difficult to predict the periodicity of that or even
if they will have but, if you are having these shorter-lived depressive
episodes, each one carries quite a degree of problem for people
and of course those problems can be made multiple as episodes
are repeated.
Q598 Chairman: Three of us were on
the joint committee that looked at the Draft Mental Incapacity
Bill and received evidence of course from the Royal College and
from Mind and of course there we did deal with the question of
what was called a fluctuating capacity where people moved in and
out of capacity. It would be interesting from our point of view
just to look at the work we did on that to see if it does read
across into this bill.
Mr Farmer: Yes.
Q599 Tom Levitt: A couple of questions
about extending the definition of disability in respect of mental
health problems. In the evidence given by Mind, you have said
that an expanded definition will inevitably bring more people
within the scope of the Act. Are you saying that because it would
bring in more people with mental health problems or more people
suffering discrimination or do you regard those two groups as
being one and the same?
Ms Daw: I am sorry, could you
repeat the question.
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